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![handle is hein.slavery/ssactsengr0071 and id is 1 raw text is: LEATHER CLOTH CO. V. AMERICAN LEATHER CLOTH CO. [1865] XI H.L.C., 521
The case of Salter's Load Sluice, gave the key note to all the subsequent decisions,
which held that the prim facie liability of an occupier no longer existed, when it
was shown that the profits connected with his occupation [521] were applicable
to public purposes. Lord Kenyon, in founding his judgment upon The King v.
St. Luke's Hospital, must have intended to decide that in the case before him there
was no beneficial occupier, although he did not advert to the distinction that in
the case of St. Luke's there was nothing received by any one by reason of the
occupation, while the commissioners of the Salter's Load Sluice were empowered
to take tolls for the navigation which was vested in them.
The exemption of an occupier whose occupation is applicable to public purposes,
was thus almost incidentally introduced, and having been so, it was accepted without
much consideration in the subsequent cases. At last some decisions having taken
place which were hard to be reconciled with each other, it became necessary to define,
with some precision, the true principle which ought to govern cases of this descrip-
tion. The distinction was then proposed between general and local public purposes.
The difficulty, nay impossibility, of reconciling the cases by a distinction of this
sort, is plain. If the ability of the occupier means the personal benefit derived
from his occupation, it is as much excluded where the profits of his occupation are
applicable to limited public purposes, as where they are to be applied to the benefit
of the public at large.
I am of opinion that under the words of the 43d Elizabeth, every occupier of a
tenement yielding profit, is within the rating clause of the statute, although the
tenement be a public work for the general good of the realm, and the profit be
directed to be applied exclusively to its maintenance.
Having thus expressed my opinion that the Mfersey trustees are liable to be rated
for the Liverpool as well as for the Birkenhead Docks, it is unnecessary to consider
[522] the effect of the different Acts by which the trustees were expressly made
liable to parochial rates in respect of warehouses to be built in like manner, as
the same are or would be payable in respect of warehouses, the occupancy of which
is beneficial. The provisions of these Acts certainly appear to indicate the opinion
of the Legislature, that without them the warehouses would have been exempt from
liability to poor rate as part of the docks enjoying thai exemption. But if this
liability existed before, the Acts can have no effect in taking it away by mere
implication.
It is quite true, as Mr. Justice Byles has said, that the Act of 20 and 21 Vict.
having consolidated the docks at Liverpool and Birkenhead into one estate, and
vested the control of them in one public trust, it would be singular if one portion
of the property should be rateable, and one not rateable under precisely similar
circumstances. This would be so if both the decisions appealed against were to
stand. The remark strikingly exhibits the impossibility of reconciling decisions
which on the one hand have exempted the Liverpol Docks from liability to rate,
and on the other have rendered the Birkenhead Docks liable to it.
By reversing the judgment in the case of the Liverpool Docks and by affirming
the judgment in that of the Birkenhead Docks, the decisions will at last be brought
into uniformity, and the statute 43d Elizabeth will, in my opinion, receive its
proper construction and have its consistent effect and operation.
Lord Kingsdown concurred. Lords' Journals, 22d June 1865.
[523] The LEATHER CLOTH COMPANY (Limited),-Appellants; The AMERICAN
LEATHER CLOTH COMPANY (Limited),-Respondents [March 31, April 3,
4, 1865].
[Mews' Dig. xiv. 106, 107, 122, 133, 141. S.C. 35 L.J. Ch. 53; 12 L.T. 742; 13 W.R.
873; 11 Jur. N.S. 513; 6 N.R. 209; and, below, 33 L.J. Ch. 199; 9 L.T. 558; 12
W.R. 289; 10 Jur. N.S. 81; 2 N.R. 481; 3 N.R. 264; 4 De G. J. and S. 137. On
point (i.) as to principle on which passing off is actionable (11 H.L.C. 538),
applied in Rddaway v. Banham (1896), A.C. 199; (ii.) as to misuse of term
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